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PETITIONER: MUKUND LAL BHANDARI AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/05/1993

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. RAY, G.N. (J)

CITATION:  1993 AIR 2127            1993 SCR  (3) 891  1993 SCC  Supl.  (3)   2 JT 1993 (3)   342  1993 SCALE  (2)933

ACT: % Freedom  Fighters  Pension  Scheme  1972-Swantantra   Sainik Samman    Pension   Scheme-Delay   in    application,    and retrospectivity in payment of pension--Held, object being to assist  and honour freedom fighters, delay would not  affect entitlement-Pension payable from the date of application.

HEADNOTE: The petitioners (late) freedom Fighters participated in  the Arya  Samaj  Movement in the late 1930 s, in  the  erstwhile Nizam State of Hyderabad. The  Freedom  Fighters  Pension Scheme  1972,  when  it  was framed, provided for payment of pension to freedom  fighters who  had suffered a minimum imprisonment of six  months  and whose  gross  income  did not  exceed  Rs.5,000.From  August 1980,the  Scheme  was  extended  to  all  freedom   fighters irrespective  of  their  income and as a  token  (of  honour (Samman)  to  them.  In 1985, it was extended to  those  who participated  in  the Arya Samaj Movement of  1936-39  which took place in the former Hyderabad State. In the writ petition before this Court it was contended  for the Union of India that the petitioners had not produced the required  proof  to demonstrate eligibility; that  they  had filed  their  applications after the  prescribed  date;  and that,  in any event, they would be entitled to  the  pension only  from the date they produced the  required  documentary proof and not an earlier date. Allowing the petition, this Court HELD  : 1. Whatsoever the date on which the  claimants  make the  applications,  even where it is  after  the  prescribed date,  the  benefit should be made available to  them.   The date  prescribed in any past or future notice  inviting  the claims,   should   he   regarded  more  as   a   matter   of administrative convenience than as a rigid time limit, (896- F) Those  eligible  for the pension mail be scattered,  or  may have no knowledge (if the prescribed date.  Moreover, if the scheme has been intro- 892 duced with the genuine desire to assist and honour these who

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had  given the best part of their life for the  country.  it ill-behaves  the  government to raise  pleas  of  limitation against such claims. 2.   The  date  on  which the required  proof  is  furnished should make no difference to the entitlement of the  benefit under  the Scheme.  It is unrealistic and demeaning  to  the object of the scheme, to fix a rigid time limit for proof of entitlement.   Once the application is made, even if  it  is unaccompanied by the requisite eligibility data, the date on which  it  is  made should he accepted as the  date  of  the preferment of the claim whatever the date on which the proof (if eligibility is furnished. (897-C) 3.   The pension will be payable from the date on which  the original application is received whether the application  is received  whether the application is filed with  or  without the requisite evidence.  The sanction of the pension  would, however, he subject to the requisite proof in support of the claim. (898-H) There  is  no doubt that if the object of the scheme  is  to benefit the freedom fighters, theoretically, they should  he entitled  to the benefit from the date the scheme came  into existence.   But  the  spirit of the scheme  being  both  to assist  and  honour the needy and acknowledge  the  valuable sacrifices  made,  it  would be contrary to  its  spirit  to convert  it  into some kind of a programe  of  compensation. (897-F) Moreover,  since  the  benefit of the  scheme  is  available irrespective  of the date on which the application is  made, it   would   not  be  advisable  to   extend   the   benefit retrospectively. (898-C) 4.   Applications  and evidence produced in support  of  the claim  should be scrutinised and disposed of, in  any  case, within three months of their receipt. (898-G) Duli  Chand  v. Union of India.  W.P. No. 1190 of  1989  and Surja  and  Ors. v. Union of India & Anr.  W.P.  No.  75  of 1991, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Pentition (c) No. 153 of 1992. (Under Article 32 of the Constitution of India) 893 Mahabir  Singh,  R.K.  Khanna and R.P. Singh  (NP)  for  the Petitioners. D.P. Gupta, Solicitor General, Ms. A. Subshini (NP) and  Ms. Niranjana Singh for the Respondents. The Judgment of the Court was delivered by SAWANT,  J. This is a petition by some freedom fighters  and defendants of other freedom fighters claiming pension  under the  Freedom Fighters Pension Scheme, 1972.  The Scheme  was introduced by the Government of India on the occasion of the 25th Anniversary of the Independence.  It commenced on  15th August,  1972  and  provided for the (,rant  of  pension  to freedom  fighters  and  if  they were  not  alive  to  their families  and  also  to the families of  the  martyrs.   The minimum  pension sanctioned to the freedom fighters was  Rs. 200 per month and for their families, it varied from Rs. 100 to  Rs.  200 in accordance with the size and the  number  of eligible dependents in the family.  Till 31st July, 1980 the pension  was  admissible only to those  whose  gross  annual income  did not exceed Rs. 5000.  From 1st August 1980,  the benefit  of the Scheme was extended to all freedom  fighters irrespective  of  their  income and as  a  token  of  honour (Samman)  to them.  From that date, the maximum  quantum  of

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pension  was  also  increased from Rs. 200 to  Rs.  300  for freedom  fighters and the minimum was enhanced from Rs.  100 to  Rs. 200 to the widows of the late freedom fighters  with addition  of  Rs. 50 per month for each  unmarried  daughter with  a maximum limit of Rs.300 per month.  The  eligibility to get the Samman pension, as it came to be called from  1st August,  1980,  depended  upon the  freedom  fighter  having suffered a minimum imprisonment of six months.  However,  if the freedom fighter was a woman or belonged to the Scheduled Caste  or Scheduled Tribe community, the minimum  period  of actual  imprisonment,  was reduced to three  months.   While explaining the meaning of the actual imprisonment the Scheme states; (a) the detention under the orders of the  competent authority will be considered as imprisonment; (b) the period of normal remission upto one month would be treated as  part of  the actual imprisonment; (c) in case the trial ended  in conviction, the under-trial period would be counted  towards actual  imprisonment  suffered  (d)  the  broken  period  of imprisonment   would  be  totaled  up  for   computing   the qualifying period; (e) the person remaining underground  for more than six months, provided he was a proclaimed  offender or  one  for whom an award for arrest or for  his  head  was announced  or one for whose detention, order was issued  but not  served  and  (f) the person interned  in  his  home  or external from his district for six months or more, a  person whose  property was confiscated or attached or sold  due  to participation  in the freedom struggle, a person who  became permanently  incapacitated on account of violence  inflicted on 894 him  during such struggle, a person who lost his  Govt.  job Central  or  State  and thus the  means  of  livelihood  for participation in such struggle, were also made eligible  for the pension. In  September  1985,  on the  recommendations  of  the  non- official  advisory  committee  at  the  Central  level   the Government renamed the Pension Scheme, and also enhanced the quantum  of  the  pension by  its  Circular/letter  of  30th September, 1985.  It informed all the State Governments  and Union  Territory Administration that the Scheme was  renamed as  Swatantra  Sanik Samman Pension  Scheme.   The  circular further   informed  that  the  Scheme  was   extended   with retrospective effect from 1980 to those who participated  in the  Arya Samaj Movement of 1936-39 which took place in  the former  Hyderabad  State.  The quantum  of  monthly  pension admissible  to  the freedom fighters and  their  widows  was raised  to Rs. 500 with effect from 1st June, 1985  and  the unmarried  daughters of the widows who had  been  sanctioned family pension became entitled to additional pension of  Rs. 50/- per month. 2. In Writ Petition No. 1190 of 1189 - Duli Chand & Ors,  v. Union  of India & Ors. where the claim for pension was  made by  the  petitioners,  the Union of India  did  not  file  a counter.   On the other hand, a statement was made on  their behalf  that on documents being produced in support  of  the claim, there would be no objection to granting the  pension. It does not further appear that any contention was raised on behalf of the Government that the pension should not be made payable with retrospective effect.  The facts, on the  other hand,  reveal  that  one of the  petitioners  in  that  writ petition  was granted pension by the Government with  effect from  1st August, 1980 during the pendency of the  petition. It  is on these facts, that this Court by its order of  16th July,  1990 made in that petition, directed that 41  of  the petitioners  should be granted pension with effect from  1st

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August,  1980  although  they had  made  their  applications beyond the date which was prescribed for making application. Writ  Petition  No. 75 of 1991 - Surja & Ors.  v.  Union  of India  & Anr.  was filed by some of the participants in  the Arya Samaj Movement in the late 1930s in the erstwhile Nizam State  of  Hyderabad.   The participants  in  question  were sentenced  to  various terms of imprisonment  exceeding  six months.   The Union of India filed a  counter-affidavit  and pointed  out that the earlier petition, viz., W.P. No,  1190 of  1989 (Supra) was decided ex-parte and by  accepting  all the allegations made by the petitioners therein.  The Court, therefore, felt that it would not be appropriate to  dispose of  the  petition by adopting the order made by  it  in  the earlier  petition.   One  of the questions  which  fell  for consideration  was whether the petitioners had suffered  the minimum sentence of six months’ imprisonment on 895 account  of their participation in the said Movement,  which was the qualifying period of’ imprisonment under the Scheme. It  was  found  from the material produced by  most  of  the petitioners  that  they were sentenced to  imprisonment  for terms  exceeding  six  months.   However,  while  they  were undergoing  their sentences, a general amnesty was  declared by  the then N....on his birthday, and without their  asking for the same, their sentences were reduced and they were set free.   In view of the fact that the petitioners’  sentences were reduced without their praying for the same, it was held that  the petitioners had satisfied the condition under  the Scheme, viz., that they had been imprisoned for six  months. While  interpreting the qualifying condition of six  months’ imprisonment,  it was in terms held that if a  prisoner  was sentenced to imprisonment for six months or more and if  the period  of actual imprisonment was reduce not on account  of his  claiming  any remission, he should be  deemed  to  have fulfilled  the  qualifying period of  imprisonment  for  six months.  In the circumstances, the claim of the  petitioners was accepted and they were directed to be paid pension  with effect from 1st August, 1980.  Here again. it may be pointed out,  it was not contended on behalf of the Union  of  India that   the   pension  should  not  be  made   payable   with retrospective  effect  and hence there was  no  occasion  to consider  whether  notwithstanding the delay in  making  the application  and  whatever the date on which  the  applicant made  the  claim,  he should be entitled to  the  same  with effect  from  the retrospective date as if he had  made  his application  in time, viz., before the date  prescribed  for making such application. 3.   Coming now to the present petition, the petitioners/the late  freedom fighters are persons who had  participated  in the  Arya Samaj Movement in the late 1930s in the  erstwhile Nizam State of Hyderabad.  In view of the amendment made  to the  Scheme  by the Government  Circular/letter  dated  30th September,  1985,  the  petitioners  would  undisputedly  be entitled  to the benefit of the Scheme provided, of  course, they  produced  the relevant material in  support  of  their claim.   This  is  not disputed on behalf of  the  Union  of India.    However,  three  contentions  have  been   raised. Firstly,  the  petitioners have not  produced  the  required proof  in  support  of their claim that  they  had  in  fact participated   in  the  movement  and  were   sentenced   to imprisonment  for  six months or more.  Secondly,  they  had filed  their  applications before the Government  after  the date prescribed for filing the application.  And thirdly, in any case, if it is held that they satisfied the  qualifying, conditions  under the Scheme, they would be entitled to  the

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pension  only  from  the date  they  produced  the  required documentary proof in support of their claim and not from any earlier date. 4.  As  regards  the sufficiency of the  proof,  the  Scheme itself mentions the 896 documents  which  are  required to be  produced  before  the Government.  It is not possible for this Court to scrutinize the  documents which according to the petitioners, they  had produced in support of their claim and pronounce upon  their genuineness.  It is the function of the Government to do so. We would, therefore. direct accordingly. As  regards  the contention that the petitioners  had  filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not  justifiable. It  is common knowledge that those who participated  in  the freedom  struggle  either at the national level  or  in  the erstwhile  Nizam State, are scattered all over  the  country and most of them may even be inhabiting, the remotest  parts of  the rural areas.  What is more, almost all of them  must have  now  grown pretty old, if they are alive.   Where  the freedom  fighters  are not alive and their  widows  and  the unmarried daughters have to prefer claims, the position  may still  be  worse  with  regard to  their  knowledge  of  the prescribed  date.   What  is more, if the  Scheme  has  been introduced  with  the genuine desire to  assist  and  honour those  who  had given the best part of their  life  for  the country,  it  ill-behoves the Government to raise  pleas  of limitation against such claims.  In fact, the Government, if it  possible for them to do so, should find out the  freedom fighters  or  their dependents and approach  them  with  the pension  instead of requiring them to make applications  for the same.  That would be the true spirit of working out such Schemes.   The Schemes has rightly been renamed in  1985  as the  Swatantra Sainik Samman Pension Scheme to  accord  with its  object.  We, therefore, cannot countenance the plea  of the Government that the claimants would only be entitled  to the benefit of the Scheme if they made applications before a particular  date  notwithstanding  that  in  fact  they  had suffered  the imprisonment and made the sacrifices and  were thus  otherwise qualified to receive the benefit.   We  are, therefore,  of the view that whatever the date on which  the claimants make the applications, the benefit should be  made available to them.  The date prescribed in any pastor future notice  inviting  the claims, should be regarded more  as  a matter  of administrative Convenience than as a rigid  time- limit. Coming now to the last contention advanced on behalf of  the Government,  viz., that the benefit of the Scheme should  be extended  only  from  the date  the  claimant  produces  the required proof of his eligibility to the pension, we are  of the   view  that  this  contention  can  be  accepted   only partially.   There have been cases, as in the present  case, where some of the claimants had made their applications  but either  without  the  necessary documentary  proof  or  with insufficient  proof.  It is unreasonable to expect that  the freedom  fighters and their dependents, would be readily  in possession of the required documents.  In the very nature of things, such 897 documents have to be secured either from the jail records or from  persons who have been named in the Scheme  to  certify the eligibility.  Thus the claimants have to rely upon third parties.  The records are also quite old.  They are bound to take  their  own time to be available.   It  is,  therefore,

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unrealistic  to  expect that the. claimants would  be  in  a position  to  produce documents within a fixed  time  limit, What is necessary in matters of such claims is to  ascertain the factum of the eligibility.  The point of time when it is ascertained,  is unimportant.  The prescription of  a  rigid time-limit  for  the proof of the entitlement  in  the  very nature of things is demeaning, to the object of the  Scheme. We are, therefore, of the view that neither the date of  the application  nor  the date on which the  required  proof  is furnished  should make any difference to the entitlement  of the  benefit under the Scheme.  Hence, Once the  application is  made,  even  if it is  unaccompanied  by  the  requisite eligibility  date,  the date of which it is made  should  be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished. 5.That   leaves  us  with  the  question  as   to   whether, notwithstanding, the date on which the application itself is made. the claimant should be entitled to the benefit of  the pension with effect from an earlier date.  In support of the contention  that the benefit should be made  available  with retrospective  effect, reliance is placed on the  two  cases cited  earlier where the benefit is given with  effect  from 1st  August, 1980.  We have given our anxious  consideration to  the question and are of the view that for  reasons  more than one, the benefit should flow only from the date of  the application  and not form any date earlier.  As pointed  out before in the two earlier cases the question with regard  to the retrospectivity of the benefit was neither nor answered. We have. therefore, to decide it for the first time.   There is  no doubt that if the object of the Scheme is to  benefit the freedom fighters, theoretically they should be  entitled the freedom fighters, theoretically, they should be entitled to the benefit from the date the Scheme came into operation. But  the  history,  the true spirit and the  object  of  the Scheme    would   itself   probably   not    support    such starlit-.jacket formula.  As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the  Silver Jubilee  of our National Independence.  It is not  suggested that  some  of  the freedom fighters were  not  in  need  of financial  assistance prior to that date.  When  the  Scheme came  into force for the first time, it was also  restricted to those who were in need of such assistance and hence  only such  freedom fighters were given its benefit. whose  annual income  did  not exceed Rs 5,000.  It is only  later,  i.e., from 1st August. 1980, that the benefit was extended to  all irrespective of their income.  The object in making the said relaxation  was not to reward or compensate  the  sacrifices made in the freedom struggle.  The object was to honour  and where it was necessary. also to mitigate the 898 sufferings of those who had given their all for the  country in the hour of its need.  In fact, many of those who do  not have sufficient income to maintain themselves refuse to take benefit  of it, since they consider it as an affront to  the sense of’ patriotism with which they plunged in the  Freedom Struggle.  The spirit of the Scheme being both to  assistant Honour  the  needy and acknowledge the  valuable  sacrifices made, it would be contrary to its spirit to convert it  into Some  kind of a programme of compensation.  Yet that may  be the   result  if  the  benefit  is  directed  to  be   given retrospectively   whatever  the  date  the  application   is made.The Scheme should retain its high objective with  which it  was motivated.  It should not further be forgotten  that now its benefit is made available irrespective of the income limit.   Secondly,  and this is equally important  to  note,

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since  we  are by this decision making the  benefit  of  the scheme  available  irrespective  of the date  on  which  the application is made. it would not be advisable to extend the benefit  retrospectively.   Lastly. the  pension  under  the present Scheme is not the only benefit made available to the freedom  fighters  or their dependents.  The  preference  in employment,  allotment or accommodation and in admission  to schools and colleges to their kith and kin etc. are also the other  benefits which have been made available to  them  for quite sometime now. Hence  we are of the view that the pension under the  Scheme should  be  made  payable only from the date  on  which  the application  is made whether the application is  accompanied by  the necessary proof of eligibility or not.  The  pension should,  of  course. be sanctioned only after  the  required proof is produced. 6.   We  decline  to  go into the facts  of  the  individual petitioners  in this petition and direct the respondents  as follows: [a]  The respondents should accept the applications  of  the petitioners irrespective of the date on which they are made. The   applications   received  hereafter  should   also   be entertained  without raising the plea that they  are  beyond the prescribed date. [b] The respondents should scrutinies every application  and the evidence produced in support of the claim and dispose it of as expeditiously as possible and in any case within three months of the receipt of the application, and the  documents proof keeping in view the laudable and sacrosanct object  of the Scheme. [c]  The pension should he paid to the applicant  front  the date  on which the original application is received  whether the  application  is  filed with or  without  the  requisite evidence.The  sanction  of tile pension would,  however,  he subject to the 899 requisite proof in support of the claim. The respondents are directed to dispose of the cases of  the individual petitioners in the present petition in the  light of the above directions at the latest within two months from today. The petition is disposed of accordingly with no order as  to costs. U.R.                                   Petition disposed of. 900